Citation Nr: 0014545
Decision Date: 06/02/00 Archive Date: 06/09/00
DOCKET NO. 98-12 327 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUES
1. Entitlement to an increased rating for residuals of
resection of the prostate, currently evaluated as 60 percent
disabling.
2. Entitlement to a total disability rating based on
individual unemployability (TDIU).
3. Entitlement to service connection for removal of a left
kidney for hypoplasia.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
David S. Nelson, Associate Counsel
INTRODUCTION
The veteran had active service from January 1938 to September
1958.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from an April 1959 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Cincinnati, Ohio, and rating decisions of the VA Regional
Office in Cleveland, Ohio.
The issue characterized on the title page as service
connection for removal of the veteran's left kidney was
developed for appeal as to whether rating decisions in April
1959, September 1972, and December 1980 contained clear and
unmistakable error (CUE). In view of the Board's decision
below, the issue is restated as entitlement to service
connection for removal of a left kidney for hypoplasia, and
will be decided on a de novo basis.
In light of the Board's decision regarding the issue of
entitlement to service connection for removal of a left
kidney for hypoplasia, the Board will defer action on the
issue of entitlement to TDIU.
FINDINGS OF FACT
1. The maximum schedular rating for a voiding dysfunction is
60 percent.
2. An April 1959 rating decision denied the veteran's claim
of service connection for removal of a left kidney for
hypoplasia; rating decisions dated in September 1972 and
December 1980 denied applications to reopen a claim of
entitlement to service connection for the left kidney
disability.
3. In a letter received by the Cincinnati Regional Office in
May 1959 (dated April 29, 1959), the veteran expressed an
intent to appeal the April 1959 rating decision which denied
his claim of service connection for removal of a left kidney
for hypoplasia.
CONCLUSIONS OF LAW
1. The schedular criteria for entitlement to a rating in
excess of 60 percent for residuals of resection of the
prostate have not been met. 38 C.F.R. §38 U.S.C.A. §§ 1155,
5107 (West 1991); 38 C.F.R. Part 4, §§ 4.115a, 4.115b,
Diagnostic Code 7527 (1999).
2. Rating decisions dated in April 13, 1959, September 27,
1972, and December 16, 1980, which denied service connection
for removal of a left kidney for hypoplasia, are not final.
38 U.S.C.A. § 7105 (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Increased rating for residuals of resection of the
prostate
The Board notes that a mere allegation that a service-
connected disability has become more severe is sufficient to
establish a well-grounded claim for an increased rating. See
Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v.
Derwinski, 2 Vet. App 629, 632 (1992). Accordingly, the
Board finds that the veteran's claim for an increased rating
is well grounded within the meaning of 38 U.S.C.A. § 5107(a).
The Board also finds that all relevant facts have been
properly developed, and that all evidence necessary for
equitable resolution of the issue on appeal has been
obtained, and that the duty to assist the veteran has been
met. See 38 U.S.C.A. § 5107(a).
Disability ratings are determined by applying the criteria
set forth in the VA's Schedule for Rating Disabilities, which
is based on the average impairment of earning capacity.
Individual disabilities are assigned separate diagnostic
codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where an
increase in an existing disability rating based on
established entitlement to compensation is at issue, the
present level of disability is the primary concern.
Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If two
evaluations are potentially applicable, the higher evaluation
will be assigned if the disability picture more nearly
approximates the criteria required for that rating;
otherwise, the lower rating will be assigned. 38 C.F.R. §
4.7.
The veteran's residuals of resection of the prostate
disability is evaluated pursuant to the criteria found in
Diagnostic Code 7527. Under those criteria, prostate
disabilities are rated as voiding dysfunction or urinary
tract infection, whichever is predominant. 38 C.F.R. §
4.115b (1999). The criteria for evaluation of voiding
dysfunction provide for a rating of 60 percent where the
evidence shows urine leakage, urine frequency, or obstructed
voiding requiring the use of an appliance or the wearing of
absorbent materials which must be changed more than four
times per day. Neither the criteria for voiding dysfunction
nor the criteria for urinary tract infection provide for a
rating in excess of 60 percent. 38 C.F.R. § 4.115a (1999).
As the veteran has been assigned the schedular maximum rating
of 60 percent, the Board finds that the criteria for a higher
schedular rating are not met, and thus the veteran's claim
for a rating greater than 60 percent must be denied. See
McGrath v. Brown, 5 Vet. App. 57 (1993).
The Board finds that, in this case, the disability picture is
not so exceptional or unusual as to warrant a referral for an
evaluation on an extraschedular basis. For example, it has
not been shown that the veteran's residuals of resection of
the prostate disability, alone, has resulted in frequent
hospitalizations or caused a marked interference in the
veteran's employment. In the absence of such factors, the
Board finds that criteria for submission for assignment of an
extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are
not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996);
Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
Finally, the Board has considered the provisions of 38
U.S.C.A. § 5107(b), but there is not such a state of
equipoise of the negative evidence with the positive evidence
to otherwise warrant more favorable determination in this
matter.
II. Service connection for left kidney removal, developed
for appeal as CUE claims
In an April 1959 rating decision, the veteran's claim of
service connection for removal of a left kidney for
hypoplasia was denied. Rating decisions dated in September
1972 and December 1980 denied applications to reopen a claim
of entitlement to service connection for the left kidney
disability.
In an April 1959 rating decision, the veteran's claim of
service connection for removal of a left kidney for
hypoplasia was denied. The veteran was notified in
correspondence dated in April 24, 1959 that "you may appeal
to the Administrator of Veterans Affairs at any time within
one year from the date of this letter. If you desire to
appeal, you should so inform this office, any you will be
furnished with VA Form 1-9 for that purpose." In a letter
received by the Cincinnati Regional Office in May 1995 (dated
April 29, 1959), the veteran indicated that he could not
understand why the removal of his kidney was not service
connected. He then stated that he was "of the opinion that
I should appeal this decision." The record reveals that the
Cincinnati RO did not furnish the veteran with a VA Form 1-9,
and the Board finds that the veteran's April 29, 1959 letter
expressed an intent to appeal the April 1959 rating decision
which denied his claim of service connection for removal of a
left kidney for hypoplasia. Accordingly, the Board finds
that the April 1959 rating decision is not a final decision.
Consequently, as the April 1959 rating decision is not a
final decision, the decisions dated in September 1972 and
December 1980 that denied applications to reopen a claim of
entitlement to service connection for the left kidney
disability are also not final decisions.
ORDER
Entitlement to a rating in excess of 60 percent for residuals
of resection of the prostate is denied.
For the reasons above, the issue of CUE in the rating
decisions starting in April 1959 is moot and the issue is
restated as entitlement to service connection for removal of
a left kidney for hypoplasia.
REMAND
As noted, the Board finds that the April 1959 rating decision
that denied service connection for removal of a left kidney
for hypoplasia is not a final decision. As the veteran has
initiated an appeal from the April 1959 rating decision, a
statement of the case is therefore necessary to provide the
veteran with an opportunity to present arguments on the
appellate issue.
In view of the foregoing, the case is REMANDED to the RO for
the following action:
The RO should issue a statement of the
case, on the appeal initiated by the
veteran from the April 1959 rating
decision which denied entitlement to
service connection for removal of a left
kidney for hypoplasia. The veteran is to
be provided a reasonable time to make
arguments in support of his claim; if he
does not make any, the case is to be
returned to the Board for final appellate
action.
The purpose of this remand is to ensure compliance with
applicable laws and regulations and to afford the appellant
due process of law. The appellant has the right to submit
additional evidence and argument on the matter or matters the
Board has remanded to the regional office. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
BRUCE KANNEE
Member, Board of Veterans' Appeals